Still Dying for a Living: Corporate Criminal Liability After the Westray Mine Disaster
Author: Steven Bittle
Publisher: Vancouver, BC: UBC Press, 2012. 268p.
Reviewer: Harry Glasbeek | January 2014
Twenty-six years ago, Canadian health and safety in the workplace activists launched a campaign to have one day of the year on which there is to be a roll-call of the dead and wounded; one day on which there can be an organized call for a public accounting of the ceaseless assaults on workers. This struck a chord amongst activists everywhere. The Day of Mourning has become a world-wide event. On a personal, cathartic level, it provides an occasion for friends and family members of workers killed on the job to come together and to share their grief and memories. Politically, the Day of Mourning remains a necessary event. With the toll of broken bodies and lives which gave it life and to which it pays homage, it has become routinized. The occasion provides a way to rally activists and to issue calls for improvements to health and safety regulation and compensation schemes.
It is not as if there are no rules aimed at providing a safe work environment. There is a large body of regulations, administered by earnest regulators and posited on sophisticated theoretical arguments. The conventional wisdom is that a humane balance between the need to facilitate and promote market capitalist activities, on the one hand, and health and safety, on the other hand, has been struck. The framework is that the workplace parties have a shared interest in having the for-profit enterprise in which they are engaged succeed in a competitive world and in not injuring or killing workers or, at least, as few as humanly possible. To give this assumed consensual model life, the regulatory scheme sets standards on the basis of the incidence and gravity of past experiences and educates the workplace parties on how to meet those standards, in part by inspecting their attempts to comply with the standards and, occasionally, by sanctioning people for their failures. At the heart of the regime of regulation is the belief that the parties can be trusted to do their utmost to meet reasonable standards of safety. No one wants to do harm.
From these starting points, the ceaseless parade of injured, ill and dead workers is seen as the unfortunate outcomes of a decent system, as accidents. They are undesired materializations of risks that inevitably accompany productive activities. We are assured that the steady drip of singular workplace injuries and deaths are the price we should be willing to pay. But, every now and again there is a calamitous event that throws doubt on the reasonableness of our regulatory regime, that gives the Day of Mourning a bite that it usually does not have. When this happens, questions about the assumptions of the normality and common sense of the ruling regulatory policies force themselves on the agenda. The Westray coal mine explosion in Nova Scotia was such a happening.
The coal mine was opened in an area well-known to be a dangerous site because there had been many mining disasters in the area in the past. Governments, keen to create needed jobs and to get kudos for it, provided the mining operators with substantial assistance. The operators maintained a hazardous workplace. By the time the explosion occurred, inspectors administering the local coal mining regulatory scheme had issued orders to attend to 52 violations of the existing standards. No order led to a sanction, even though there was evidence of non-compliance. When the mine blew up, killing 26 underground workers and leaving 11 of them buried forever, shock and anger gripped not only the area, but the nation. Retribution was sorely needed. It did not come. Shortly after the explosion, the corporate owner ceased to exist; two senior managers were prosecuted but the blundering prosecutors only succeeded in having the charges dismissed; the CEO of, and chief shareholder in the owning corporation, who had been much feted for his enterprise and creation of employment in a depressed area, simply disappeared from legal view. A commission of inquiry was established and its report’s title said it all:” The Westray Story: A Predictable Path to Disaster”. It found that the saga was a stark example of an operation where production demands trumped basic demands for safety. The government and the employer, both entrusted with the task of ensuring a safe work environment, had been found wanting and remained unpunished.
Something needed to be done. And it was. The federal government, which has jurisdiction over criminal law in Canada, enacted legislation that created a novel means to hold corporations criminally responsible. That legislation provides the material for this book.
Steven Bittle sets out to describe, contextualize and analyze the passing of this law. It is the special nature of the law that attracts his attention. It is a law squarely aimed at making it easier to hold capitalism’s primary vehicle, the corporation, liable for criminal behaviour. Given the starting points of regulatory regimes in which entrepreneurs are seen as virtuous actors engaged in the virtuous activity of creating wealth, the notion that their aggression when pursuing wealth ought to be criminalized more often than it has been, is in and of itself, a departure. Moreover, given the nature of the corporation as an organic, dynamic collection of assets and people, the concept of applying basic criminal laws, with their emphasis on intentional wrongful behaviour by individuals, is counter-intuitive. How did the Westray Bill deal with these starting problems? In answering these questions, Bittle crafts a finely argued and well-documented book.
He concentrates on how dominant discourses inform the conceptualization of corporate crime and corporate criminal liability, and then, how these discourses are echoed in, and resonate with, the broader social and political economic contexts in which laws are made. The inquiry also requires him to allocate to law a role in the ideological and political struggles that ensue whenever policy-makers have to deal with conflicts that threaten to disturb the stability of prevailing social relations. The result is a highly informative and insightful piece of scholarship.
As the author puts himself into position to make his arguments, he sets out the social theories that inform his analysis. He sketches out the ideas of Foucault, Althusser and the like, which allows him to detail the ways in which dominant discourse is created and how this is accompanied by the emergence of authorized knowers. This pushes him to a discussion of the way in which hegemony evolves and how incomplete, how conditional it always is, referring to the work of Gramsci. This puts him in a position to argue that reformist pushes are realistic projects. He also introduces readers to the way in which law is posited as a neutral conflict resolution institution, giving its pronouncements and decrees a very special niche in the maintenance of the status quo, in the establishment and maintenance of this contestable hegemony — but that law has its own needs to retain its standing and that this requires adherence to certain precepts. This lays the ground for his eventual arguments that law’s needs constrained the kind of reform possible.
All of this is fodder for those readers intrigued by social theory scholarship but, because it is impeccably academic, and maybe a little arcane in spots, it could have been thought to be somewhat inaccessible to those readers of the book who are more interested in the regulation of deviant corporate behaviour. But, fortunately this will not be so. The way in which the book is written allows the lay reader to come to terms with its theoretical underpinnings. Bittle puts flesh and bones on his social theory skeletal framework. The strength of his work is that it is an intelligent blend of scholarly discussion and concrete social facts and daily politics that illuminates legal and political processes.
The author documents the way in which the Westray Bill, as it is commonly known, was made into law. He describes the processes, documents the legislative debates and enriches all this with the contents of interviews he conducted with the major players. This is the positive aspect of the proposed book: it not only tells an interesting story about a public-attention deserving drama, but it explains the way in which we make laws, how political forces coalesce and confront each other and how the dominant relations of production contour law-making.
The approach here is highly rewarding. The book brings out how the assumptions of the dominant discourse play their role in the making of law. For instance, Bittle observes that the corporate sectors did not have to do much by way of direct intervention during the debates to have legislators exhibit restraint. Again and again his study reveals the way in which politicians had internalized the need not to have the reforming, criminalizing legislation ( universally acknowledged to be needed after the Westray incident) minimize the pivotal role of the corporation in capitalism and not to inhibit wealth maximization pursuits. Similarly, they did not need to be persuaded that control over production and its safety requirements should be entrusted primarily to the internal workings of enterprises. The privileging of the for-profit sphere did not have to be defended. This highlights the nature of the struggle in which regulatory theorists and militants interested in a regulatory scheme with different assumptions must engage.
Similarly, the book’s empirical evidence makes it clear that, when a social policy is to be implemented, lawyers become authorized knowers. They, and their understandings of the nature of law and its limits, play a prominent and, in the case of this Bill, reactionary role. Bittle documents how often elected politicians and even health and safety advocates deferred to the lawyers’ claims that there was something perverse in thinking about making criminal law go beyond its self-imposed boundaries. To the lawyers who gave evidence and whose knowledge infected the law-makers, criminal law focusses, and rightly so, on wrongdoing by human individuals, units capable of forming an evil intent and acting upon it. To stretch it beyond this, to make corporations vulnerable for the acts of others, would be a distortion of fundamental principles. Although the law that was enacted did stretch beyond the limits lawyers would have liked to persist, the law-makers refused to follow the Australian example of imposing criminal corporate responsibility on the basis of having a corporate culture that made for deviant behaviour. Bittle, insightfully, notes how paradoxical it is that the authorized knowers readily accept the notion of the mystique of the corporation fed by its culture of profit-maximization.
Another insight proffered, relying on work with his colleague Laureen Snider on the emergence of an uncontrolled industry, is that law firms engaged in the enactment of the new law, came charging out of the gate as soon as it was passed. They offer advice to employers as to how they can avoid being criminalized. Good scholar that he is, Bittle acknowledges that this may help the Bill achieve its purpose of having corporate practices improved. But, he also notes that the lawyers’ exercise is about teaching corporate employers how to limit their responsibility for injuries and deaths, not about accepting the need to avert them altogether; and that one of the lawyers’ objects is to bring profitable business to the advising lawyers, reifying the very ideal that the book claims lies at the heart of the problem.
In the end, the book makes a very persuasive case that our starting assumptions inhibit the potential for creating a much safer workplace by hoping that we can effectively criminalize corporate capitalism. The evidence amassed and elaboration of it enhance the book’s theoretical framework and validate the title of the book: “Still Dying for a Living”. Certainly, as the work documents, thus far the impact of the new law is marked by its virtual non-use. Bittle makes a powerful argument to the effect that, if we are to have greater safety and better health, we must re-think our conventional assumptions. Those assumptions and the influence of legal institutional thinking and structures make attempts to criminalize corporate conduct too difficult. Symbolism is what is permitted. The Day of Mourning retains its salience.
There are some minor quibbles, mostly about legal assertions that are a little too sweeping for legal scholars. For instance, Bittle refers to corporations as private property when he possibly means private actors that own private property; he talks about the fiduciary duties owed by directors to non-shareholders, when there is no such duty, even though there may be some oblique obligations of that nature. And, while the book suggests that the Bill rejects a cultural approach, there are elements of such an approach in the sentencing provisions attached to this law. But those kinds of things are neither here nor there; they do not affect the central arguments. This is a very valuable contribution to intellectual workers and to well-intentioned policy-makers.
Steven Bittle has produced a work that should be of interest to academics and students in criminology, cultural studies, sociology, health and safety regulatory fields and law.
Harry Glasbeek, Professor Emeritus and Senior Scholar, Osgoode Hall Law School